Today the Commission will consider new regulations regarding Expenditures for General
Public Political Communications Coordinated with Candidates. I believe that these
regulations are a positive step forward for the Commission, and I would like to thank
Rosemary Smith and the OGC staff, and especially Commissioners Sandstrom and Mason, for
their hard work on this project.

The question of coordination has long been a difficult one for the Commission. In 1996,
in Colorado Republican Federal Campaign Committee v. Federal Election Commission ("Colorado
I"), the Supreme Court rejected the Commissions position that political
parties are presumptively incapable of making expenditures independently of their
candidates. On remand in this case ("Colorado II"), the U.S. Court of
Appeals for the Tenth Circuit held that even coordinated expenditures by parties could not
be limited, on the theory that political parties cannot corrupt their own candidates for
office. That case is once again on appeal to the Supreme Court.

More to the point, in 1997, in Clifton v. Federal Election Commission, the U.S.
Court of Appeals for the First Circuit invalidated FEC regulations pertaining to
coordination in the context of preparing voter guides. Similarly, in Federal Election
Commission v. Public Citizen, Inc., a federal district court in the 11th
Circuit rejected the Commissions theory of coordination based on contacts between
agents of Public Citizen and a candidates campaign, including discussion about
strategy and issues. And in Federal Election Commission v. Christian Coalition, the
U.S. District Court for the District of Columbia rejected the Commissions sweeping
theory of coordination, which the Court termed the "insider trading" standard
and described as "any consultation between a potential spender and a federal
candidates campaign organization about the candidates plans, projects, or
needs ." Rather, the Christian Coalition Court held that coordination
occurs only where:

"the candidate or her agents can exercise control over, or where
there has been substantial discussion or negotiation between the campaign and the spender
over, a communications: (1) contents; (2) timing; (3) location, mode, or intended
audience (e.g. choice between newspaper or radio advertisement); (4) volume
(e.g. number of copies of printed materials or frequency of media spots). Substantial
discussion or negotiation is such that the candidate and spender emerge as partners or
joint venturers in the expressive expenditure ."

The proposals before us today largely follow Judge Greens ruling in Christian
Coalition. This is not because we are slavishly following a "lone district
court," as some self-described "reform" groups have suggested, but because
we believe on the merits that the Courts definition of coordination was largely
correct. These regulations set forth a definition of "coordinated general public
political communications" that accounts for the realities of the political world,
including the norms of political employment, in which individuals often bounce between
candidate and party staffs, political consulting firms, and like-minded citizen groups,
and in which citizen groups have both a need and a right to communicate with their elected
officials about issues of mutual concern.

I understand that the usual critics of the FEC and its staff  among them the
Brennan Center, Common Cause, and Democracy 21 - will complain that these regulations will
make it more difficult to prove coordination. But the mere fact that a regulation sets
forth a standard that provides broad protection to what we euphemistically call "the
regulated community" (i.e., the American people), does not mean that the standard is
wrong or unrealistic. It simply affirms that there are other important values at stake.
Here those values are obvious  the right of Americans to engage in political
discussion and activity and to petition their representatives for a redress of grievances.

We should be aware, of course, that the criticism of these regulations comes not only
from those who feel that the proposed definition of "coordinated general public
political communications" provides too much protection for political speech, but also
from those who claim it provides too little. Some have argued that we ought to limit the
definition of coordinated communications to those distributed primarily in the geographic
area in which the candidate is seeking office. Others argue that it should specifically
exempt any communication made more than 30 (or 60, or 90) days before an election. I might
happily support such additions to this regulation, but there are legitimate arguments
against these proposals and the Commission must act where there are votes. The bottom line
is that these regulations are more protective of the rights of Americans to engage in
political activity than are our existing regulations at 11 C.F.R. 109.1, and I am happy to
support them on that basis.

One other safeguard that was urged on the Commission deserves particular attention.
Several comments on the proposed rules urged the Commission to limit its reach only to
communications containing "express advocacy" of the election or defeat of a
candidate, as defined by the Supreme Court in Buckley v. Valeo and Federal
Election Commission v. Massachusetts Citizens for Life ("MCFL"), and
in numerous lower court decisions. Whether or not the case law requires such a restriction
when dealing with coordinated, as opposed to uncoordinated expenditures is, I think, an
open question. Certainly there is language in both Buckley and MCFL that
would support such a conclusion, though this language is not decisive. My own view is that
this would be the better interpretation of both the cases and the Constitution.

Nevertheless, the district court in Christian Coalition rejected this view. I do
not find the Chrisitan Coalition court persuasive on this point, however. The
judges concern over "coordinated attack advertisements, through which a
candidate could spread a negative message about her opponent, at corporate or union
expense, without being held accountable for negative campaigning," seems to me
misplaced. If it were actually the candidate spreading the message, that would be a direct
contribution to the campaign. Assuming that the judge meant that the spender would spread
a negative message, we must note that that possibility was recognized in Buckley v.
Valeo, wherein the Supreme Court recognized that non-candidate issue ads would be
designed "that skirted the restriction on express advocacy of election or defeat but
nevertheless benefited the candidates campaign," but found such activity to be
constitutionally protected nevertheless. I also question whether or not Judge
Greenes position is factually correct  indeed it is the ardent claim of many
in the self-described "reform" community, that voters cannot separate candidate
ads from non-candidate ads. If true, it is hard to imagine they would not hold the
candidate responsible for such negative ads.

Regardless, given this Commissions long history of losing cases on constitutional
grounds when we have attempted to enforce our regulations against speech not containing
express advocacy, and given the important First Amendment concerns involved, my own view
is that it would have been wise to err in favor of an express advocacy requirement. We are
not required to forever interpret the statute so as to push our regulatory authority to
the fullest extent of what we think the Constitution might allow, then look for a test
case to prove it. Certainly we have lost enough test cases. In this light it is especially
important to note that while these rules create a safe harbor for inquiries
"regarding a candidates or partys position on legislative or public
policy issues;" require that coordination may be found only where the party or
candidate exercises control over the specific commands at issue; and limit coordination to
cases involving "substantial discussion or negotiation;" they do not eliminate
the chilling effect of the regulations on political speech.

Indeed, I fear that these regulations have the potential to worsen the chilling effect
that threats of enforcement can have on speech. For example, our enforcement action
against the Christian Coalition lasted over six years. It included 81 depositions,
including those of past and present employees and volunteers. Over 100,000 pages of
documents were produced, at great expense to the Coalition. I can only imagine the
Coalitions legal fees, and the effect all this has on political participation
generally. As one deponent stated, the main thing he had learned from the case was,
"Never volunteer for anything." Yet a tougher standard for establishing
coordination, such as is proposed in these regulations, without an express advocacy safe
harbor, may mean that future investigations will need to be even more intrusive. An
ultimate finding against an investigated group is not necessary to scare citizens into
abandoning constitutionally protected speech. The chilling effect that the mere
possibility of such investigations can have on speech is enormous. I hope that someday
soon the Supreme Court will consistently apply the same rigorous scrutiny to laws
regulating political speech as it does to laws regulating topless dancing, internet
pornography, and commercial speech. However, even under the Courts looser standard
of review, I believe it is quite likely that, having done a tremendous amount of work to
come up with these regulations, we will find ourselves back on the wrong side of the
Constitution in future litigation. Adopting an express advocacy standard would save us
that possibility.

Despite these concerns, I can support these regulations because they specifically leave
open the question of whether or not they apply to coordinated communications that do not
include express advocacy. Our failure to answer this question will no doubt leave a great
deal of uncertainty in the "regulated community," but when the Commission is
divided, we need to act where we can. These regulations provide new clarity regarding
express advocacy expenditures, and in that context are more protective of First Amendment
rights and values than the regulations and practices they will supercede. Furthermore,
they should allow more cases to be dismissed at the "Reason to Believe" stage,
thus benefiting free and open political participation. I hope that we will someday have a
majority of the Commission in favor of adding an express advocacy requirement to the
regulations, but for now, I take comfort in knowing that the question is left open for
another day  and that, too, I take to be an improvement over our current practice.

Despite their imperfections, I believe that on the whole these regulations are a
significant positive step in respecting constitutionally protected speech and in restoring
predictability to the Commissions activities in the realm of coordinated
expenditures, and I will support them today.